Tag: miami

Drake v. UMG: From Booth to Courtroom, a New Style of Rap Battle

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What started as a threat a month or so ago has now become an actual case. I guess this is what happens now when the two biggest names in rap clash.  While I am not here to pass judgement on either side, there was a time, in which I grew up, not long ago when rap beefs never entered the courtroom (admittedly they still too frequently end in the streets with violence).  

Leaving the hip hop cultural taboo of bringing this clash to the courts rather than the booth aside, I thought it would be interesting to look at the legal issues involved here. Many of these issues I’ve litigated or been involved in during my career and I am looking forward to seeing how they play out. 

Without opinion nor bias, below are the legal issues Drake is bringing to the table in his lawsuit against Universal Music Group (UMG):

Defamation (Libel):

– Drake alleges that UMG knowingly published and promoted the song “Not Like Us” which accuses him of being a pedophile.

– Drake must prove that false statements were made and they cause reputational harm and were made with negligence or malice.

– UMG can claim as a defense that the lyrics were artistic expression and protected under the 1st Amendment.

Negligence & Duty of Care:

– Drake can argue that UMG owed him the duty of care as an artist on their label

– If UMG published the song and knew the lyrics were harmful, negligence could be considered..

– UMG may posit the question of whether they owed Drake a duty to prevent reputational damage caused by another artist signed to them.

Breach of Fiduciary Duty:

– Labels owe artists a duty of good faith and fair dealing.

– Drake will try to show that UMG prioritized Kendrick’s success at his expense and breached this duty.

Misrepresentation & Fraud:

– Drake could argue fraudulent representation if UMG assured him of label support but promoted damaging content. 

– Drake must prove intentional deception and financial or reputational harm.

Contractual Violations:

– Depending on the contract between Drake and UMG, there may be violations constituting breach.

Tortious Interference:

– Drake could look to argue UMG interfered with his career and led to some lost business opportunities.

– Drake must prove UMG’s actions intentionally harmed him professionally and earnings wise.

First Amendment Defense by UMG:

– UMG will argue “Not Like Us” is artistic expression and thus protected speech under the 1st amendment.

– In most cases courts are likely to lean on the side of protecting lyrics as free speech unless proven to be statements made intended to cause harm.

This isn’t the first time a recording artist has sued their label, it is the first time to my knowledge that a hip hop artist is suing his/her label over a diss-track by a label mate.  If successful this landmark case could have a chilling effect on rap beefs going forward and would alter the competitive sport of rap battles in the future.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

The transmission and receipt of information contained on this Web site, in whole or in part, or communication with Zamani Thomas PA via the Internet or e-mail through this website does not constitute or create a lawyer-client relationship between us and any recipient. You should not send us any confidential information in response to this web-page. Such responses will not create a lawyer-client relationship, and whatever you disclose to us will not be privileged or confidential unless we have agreed to act as your legal counsel and you have executed a written engagement agreement with Zamani Thomas PA. The material on this website may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site to the fullest extent permitted by law. Do not act or refrain from acting upon this information without seeking professional legal counsel.

6 Differences Between U.S. and Canadian Trademarks

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Canadians should consider trademarking their brands in the U.S. due to its much larger consumer market, for protection against cross border infringement and to secure their brand’s identity in cross-border trade (particularly now with e-commerce etc.).  Without a U.S. trademark, many Canadian brands risk losing their competitive advantage in the United States.  Below are some differences between the two country’s processes. 

  1. The Use Requirements for Registration & Filing Basis
    • U.S.: An applied for trademark in the United States has a requirement that it is currently being used in commerce for it to be registered with the USPTO. Applicants are able to file for a trademark with an “Intent to Use” 1(b) filing basis, however, the examiner will not register the mark until there is evidence of that mark in use with a 1(a) filing basis.
    • Canada: Trademarks in Canada are not required to be “In Use” in order for the registration to occur, thus no filing basis is required. However, in order to maintain your trademark long term, the mark must be In Use or the trademark could be removed from the Register of Trademarks
  1. Trademark Duration and Renewal
    • U.S.: Registered marks in the United States must be renewed every 10 years and a declaration of continued use must be filed between the 5th and 6th year to maintain the registration. 
    • Canada: Registered marks in Canada must be renewed every 10 years, however do not require any midterm declarations
  1. Distinctiveness
    • U.S.: The USPTO maintains that distinctiveness is a critical element of a registered mark. If your mark is generic or descriptive it is not registerable. If your mark is descriptive the USPTO may ask for proof of “Secondary meaning”
    • Canada: Distinctiveness is important in Canada but is not as narrowly monitored as in the States. The Canadian Intellectual Property Office (CIPO) may accept broader descriptive elements than its U.S. counterpart. 
  1. Trademark Opposition
    • U.S.: Oppositions in the U.S. are filed with the Trademark Trial and Appeal Board (TTAB) which operates as a semi-judicial body. 
    • Canada: Oppositions in Canada are handled by the CIPO itself and not as formal as the TTAB procedure.
  1. Examination of Applicants and Scope of Protection
    • U.S.: The USPTO has a stricter and more in depth examination process; Particularly their assessment of “likelihood of confusion” analysis with existing registered (and times applied for) marks.
    • Canada: The CIPO process is not as rigorous overall, but does include a broader assessment of descriptiveness and registerabilty.
  1. Nationwide Protection
    • U.S.: Federal and State registrations are available in the U.S.. However federal registrations are considered superior and only available if the mark is being used in interstate commerce. 
    • Canada: Registered trademarks in Canada enjoy federal protection even in cases where there is no inter-provincial or international trade.

Disclaimer

The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any matter.

The transmission and receipt of information contained on this Web site, in whole or in part, or communication with Zamani Thomas PA via the Internet or e-mail through this website does not constitute or create a lawyer-client relationship between us and any recipient. You should not send us any confidential information in response to this web-page. Such responses will not create a lawyer-client relationship, and whatever you disclose to us will not be privileged or confidential unless we have agreed to act as your legal counsel and you have executed a written engagement agreement with Zamani Thomas PA. The material on this website may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site to the fullest extent permitted by law. Do not act or refrain from acting upon this information without seeking professional legal counsel.

IP differences between NFTs and Traditional Art

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When it comes to the legal issues surrounding intellectual property (IP), there are many similarities between non-fungible tokens (NFTs) and traditional art. However, there are also some key differences that you need to be aware of if you are buying, selling or creating either.

  1. Ownership and Copyright

In both cases, the owner of the artwork owns the copyright, which gives them exclusive rights to reproduce, distribute, and display the work. However, with NFTs, the ownership of the digital artwork is recorded on a blockchain, which can make it easier to prove ownership and track any transactions related to it.

  1. Licensing

Both traditional art and NFTs can be licensed to others for reproduction or display. However, the terms of the license should be clearly stated and agreed upon by both parties to avoid any disputes later on.

  1. Fair Use

Fair use is a legal doctrine that allows for the use of copyrighted material without permission in certain circumstances, such as for criticism, commentary, news reporting, teaching, scholarship, or research. However, the boundaries of fair use can be complex, and it is important to seek legal advice if you are unsure whether your use of a work falls under fair use or not.

  1. Plagiarism

Plagiarism is the act of passing off someone else’s work as your own. This is a serious issue in both traditional art and NFTs, and can lead to legal action being taken against the plagiarizer.

  1. Contracts

Contracts are an important tool in both traditional art and NFTs. They should be used to clearly outline the terms of any transaction or license, including the rights and responsibilities of each party. It is important to have a lawyer review any contracts to ensure that they are legally sound and protect your interests.

In conclusion, while there are many similarities between the intellectual property legal issues of traditional art and NFTs, there are also some key differences that you need to be aware of. By understanding these issues and seeking legal advice when necessary, you can protect your rights and interests when dealing with both traditional art and NFTs.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

The transmission and receipt of information contained on this Web site, in whole or in part, or communication with Zamani Thomas PA via the Internet or e-mail through this website does not constitute or create a lawyer-client relationship between us and any recipient. You should not send us any confidential information in response to this web-page. Such responses will not create a lawyer-client relationship, and whatever you disclose to us will not be privileged or confidential unless we have agreed to act as your legal counsel and you have executed a written engagement agreement with Zamani Thomas PA. The material on this website may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site to the fullest extent permitted by law. Do not act or refrain from acting upon this information without seeking professional legal counsel.

Types of Music Royalties

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Music licenses and royalties generally fall into the four categories outlined below:

  1. Performance rights Royalties – These rights deal with live performances or broadcasts. The licensee pays a set fee to a PRO and is generally able to play the entire collection (or in some instances and individual property) covered. Performance royalties are paid to the songwriters and publishers when the song/s are performed live or on radio.
  2. Mechanical licenses Royalties – These refer to mechanically reproduced music (i.e. CD, Cassette etc.) for public distribution. The publisher grants an allowance for the composition to be reproduced and in turn a royalty is paid to the artist, songwriter and publisher on a per/recording sold basis.
  3. Synchronization rights Royalties – These licenses are needed for compositions to be reproduced and used in other forms of media such as television, film, video, games, etc… The synchronization royalty is paid to the songwriters and publishers for use as “background music.”
  4. Print rights Royalties – These are paid to publishers and songwriters based on sales of their printed musical compositions and sheets.

These royalties listed above are the main types in the United States and there may be others in other countries and jurisdictions.

As with all issues in law, there are generally no one clear answer to certain issues and the circumstances are always of vital importance.

Disclaimer

THE INFORMATION CONTAINED IN THIS WEBSITE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE ON ANY MATTER.

The transmission and receipt of information contained on this Web site, in whole or in part, or communication with Zamani Thomas PA via the Internet or e-mail through this website does not constitute or create a lawyer-client relationship between us and any recipient. You should not send us any confidential information in response to this web-page. Such responses will not create a lawyer-client relationship, and whatever you disclose to us will not be privileged or confidential unless we have agreed to act as your legal counsel and you have executed a written engagement agreement with Zamani Thomas PA. The material on this website may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site to the fullest extent permitted by law. Do not act or refrain from acting upon this information without seeking professional legal counsel.